NAAMJP v. Loretta Lynch

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1982

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
MULTIJURISDICTION PRACTICE (NAAMJP); MARINNA L. CALLAWAY;
JOSE JEHUDA GARCIA; DALE E. WORKMAN; W. PEYTON GEORGE,

Plaintiffs - Appellants,

v.

LORETTA E. LYNCH, Attorney General; DEBORAH K. CHASANOW,
Chief Judge; RICHARD D. BENNETT, United States District
Court for the District of Maryland; CATHERINE C. BLAKE,
United States District Court for the District of Maryland;
JAMES K. BREDAR, United States District Court for the
District of Maryland; THEODORE D. CHUANG, United States
District Court for the District of Maryland; MARVIN J.
GARBIS, United States District Court for the District of
Maryland; PAUL W. GRIMM, United States District Court for
the District of Maryland; GEORGE J. HAZEL, United States
District Court for the District of Maryland; ELLEN L.
HOLLANDER, United States District Court for the District of
Maryland; PETER J. MESSITTE, United States District Court
for the District of Maryland; FREDERICK J. MOTZ, United
States District Court for the District of Maryland; WILLIAM
M. NICKERSON, United States District Court for the District
of Maryland; WILLIAM D. QUARLES, JR., United States District
Court for the District of Maryland; GEORGE L. RUSSELL, III,
United States District Court for the District of Maryland;
ROGER W. TITUS, United States District Court for the
District of Maryland,

Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Robert J. Conrad, Jr., United States
District Judge for the Western District of North Carolina,
sitting by designation. (1:14-cv-02110-RJC)
Argued: May 10, 2016 Decided: June 17, 2016

Before FLOYD and THACKER, Circuit Judges, and John A. GIBNEY,
Jr., United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by published opinion. Judge Gibney wrote the opinion,
in which Judge Floyd and Judge Thacker joined.

ARGUED: Joseph Robert Giannini, Los Angeles, California, for
Appellants. Brian Paul Hudak, OFFICE OF THE UNITED STATES
ATTORNEY, Washington, D.C., for Appellees. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, Alan
Burch, Special Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Washington, D.C., for Appellees.

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GIBNEY, District Judge:

“‘Membership in the bar is a privilege burdened with

conditions.’” Theard v. United States, 354 U.S. 278, 281 (1957)

(quoting In re Rouss, 221 N.Y. 81, 84, 116 N.E. 782, 783

(1917)). The National Association for the Advancement of

Multijurisdictional Practice and four attorneys (together,

“NAAMJP”) challenge the conditions placed on the privilege of

admission to the Bar of the United States District Court for the

District of Maryland (the “District” or the “District Court”) in

Local Rule 701 (“Rule 701” or the “Rule”). 1 Because Rule 701

violates neither the Constitution nor federal law, we affirm the

district court’s decision.

I. BACKGROUND

Rule 701 governs attorney admission to practice in the

District Court. 2 The Rule contains requirements based on the

state of licensure and, in some instances, the location of the

1 The four attorneys do not qualify for admission to the
District Court under Rule 701. The district court held that
these attorneys have standing, as does NAAMJP as an
organization. We agree.
2 This case focuses on the requirements for general
admission to the District Court Bar, as opposed to admission pro
hac vice (i.e., for a particular case). See Rule 101(1)(b). In
addition, Rule 701 has separate provisions allowing federal
government attorneys to practice in the District. See Rule
701(1)(b).

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attorney’s law office. 3 The Rule allows for admission of

attorneys licensed in the State of Maryland. The Rule also

allows for admission of non-Maryland attorneys if the applying

attorney maintains his or her principal law office in the state

in which he or she is licensed to practice law, as long as the

relevant federal district court in the state of licensure does

not deny admission to Maryland attorneys. In other words,

admission to non-Maryland attorneys extends only to attorneys in

states whose district courts observe reciprocity with the

District Court. Regardless of reciprocity, however, the

District will not admit a non-Maryland attorney if that attorney

maintains a law office in Maryland.

According to the District, the Rule encourages bar

membership in Maryland for attorneys intending to practice

there, and, with its reciprocity provision, encourages other

jurisdictions to adopt liberal licensing standards. Further,

the District contends that the principal law office requirement

ensures effective local supervision of the conduct of attorneys.

In response to these points, NAAMJP spews a slew of bad words to

describe Rule 701, including discriminatory, monopolistic,

balkanizing, and unconstitutional.

3Rule 701 also imposes a handful of standard requirements,
such as “[being] of good private and professional character” and
having familiarity with relevant local and federal rules.

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 NAAMJP sued the Attorney General and each of the judges of

the District Court, challenging the validity of Rule 701. The

defendants moved to dismiss, and NAAMJP moved for summary

judgment. The district court 4 granted the motion to dismiss and

denied NAAMJP’s motion for summary judgment. 5 NAAMJP has

appealed.

II. ANALYSIS

This Court reviews de novo a district court’s decision

granting a motion to dismiss. Sucampo Pharm., Inc. v. Astellas

Pharma, Inc., 471 F.3d 544, 550 (4th Cir. 2006). To survive a

Rule 12(b)(6) motion to dismiss, a complaint must state facts

that, when accepted as true, “state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). NAAMJP challenges the validity of Rule 701 under the

First Amendment, the Equal Protection Clause, the Rules Enabling

Act, and the Supremacy Clause. We address each in turn. 6

4 The Honorable Robert J. Conrad, Jr., of the Western
District of North Carolina, sat by designation to avoid any
potential conflict of interest.
5 NAAMJP has not challenged the district court’s denial of
its challenge under the Due Process Clause.
6 Although NAAMJP cites the Supreme Court’s decision in
Frazier v. Heebe, it does not ask us to strike down Rule 701
based on appellate courts’ supervisory authority over district
courts. 482 U.S. 641, 651 (1987) (Rehnquist, C.J., dissenting).
(Continued)
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 A. The First Amendment

The First Amendment prevents the government from “abridging

the freedom of speech . . . or the right of the people

peaceably to assemble, and to petition the Government for a

redress of grievances.” U.S. Const. amend. I. Nevertheless,

the professional speech doctrine allows the government to

“license and regulate those who would provide services to their

clients for compensation without running afoul of the First

Amendment.” Moore-King v. Cnty. of Chesterfield, 708 F.3d 560,

569 (4th Cir. 2013).

Under the professional speech doctrine, courts must

determine the point at which “a measure is no longer a

regulation of a profession but a regulation of speech.” Lowe v.

S.E.C., 472 U.S. 181, 230 (1985) (White, J., concurring in the

judgment). The government may regulate professionals providing

“personalized advice in a private setting to a paying client.”

Moore-King, 708 F.3d at 569; see Lowe, 472 U.S. at 232. In this

context, “the professional’s speech is incidental to the conduct

of the profession,” id., and regulation “raises no First

Even if NAAMJP had made this request, and even if we had that
power, we would not indulge the request, as Rule 701 clearly
passes constitutional muster and is clearly distinguishable from
the local rule struck down in Frazier. See id. at 643 (majority
opinion).

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Amendment problem where it amounts to ‘generally applicable

licensing provisions’ affecting those who practice the

profession,” Moore-King, 708 F.3d at 569 (quoting Lowe, 472 U.S.

at 232). In other words, the First Amendment does not come into

play.

The First Amendment does come into play, however, when the

government tries to control public discourse through the

regulation of a profession. This occurs when a regulation

limits the speech of professionals engaging “in public

discussion and commentary,” id., and not “exercising judgment on

behalf of any particular individual with whose circumstances

[they are] directly acquainted,” Lowe, 472 U.S. at 232. In this

case, regulation “must survive the level of scrutiny demanded by

the First Amendment.” Id. at 230.

In this case, Rule 701 is simply a regulation of a

profession. The Rule does not compel attorneys to speak or

regulate speech based on its content. Neither does the Rule

restrict attorneys from speaking. To the extent it regulates

speech at all, Rule 701 sets conditions for professionals

providing “personalized advice in a private setting to a paying

client.” Moore-King, 708 F.3d at 569. Applying the appropriate

test, Rule 701 qualifies as a generally applicable licensing

provision. It prescribes which attorneys may practice in the

District Court based on their state of licensure in relation to

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the location of their principal law office. Any separate

provisions for specific situations—such as federal government

attorneys—do not change the fact that Rule 701 is a generally

applicable licensing provision. Accordingly, Rule 701 does not

violate the First Amendment. 7

B. The Equal Protection Clause

The Equal Protection Clause prohibits the government from

“deny[ing] to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend XIV, § 1; see

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995)

(noting that equal protection analysis is the same under the

Fifth Amendment as it is under the Fourteenth Amendment). In

evaluating an equal protection challenge to a rule, courts must

first determine the standard of review to apply. If the rule

neither infringes a fundamental right nor disadvantages a

suspect class, courts apply rational basis review. FCC v. Beach

Commc’ns, Inc., 508 U.S. 307, 313 (1993). Under rational basis

review, the challenged rule “comes . . . bearing a strong

presumption of validity, and those attacking the rationality of

7NAAMJP does not challenge the district court’s holdings
that Rule 701 is neither substantially overbroad nor a prior
restraint on speech, so we will not disturb them. We reject all
other arguments raised by NAAMJP—including speaker
discrimination and violation of the right to free association
and petition—as meritless and utterly inapplicable to Rule 701.

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the [rule] have the burden to negative every conceivable basis

which might support it.” Id. at 314–15 (internal citations

omitted). In other words, “[w]here there are ‘plausible

reasons’ for [the rule], ‘our inquiry is at an end.’” Id. at

313–14 (quoting U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166,

179 (1980)).

Rule 701 does not infringe a fundamental right or

disadvantage a suspect class. Applying rational basis review,

Rule 701 clearly passes constitutional muster. The rationales

given by the District to justify the Rule are certainly

plausible, and NAAMJP does not bear its burden in negating them.

Both this and other circuits have upheld these rationales as

reasonable. See Goldfarb v. Supreme Court of Va., 766 F.2d 859,

865 (4th Cir. 1985); Hawkins v. Moss, 503 F.2d 1171, 1177–78

(4th Cir. 1974); see also Nat’l Ass’n for the Advancement of

Multijurisdictional Practice v. Castille, 799 F.3d 216, 219–20

(3d Cir. 2015); Nat’l Ass’n for the Advancement of

Multijurisdictional Practice v. Berch, 773 F.3d 1037, 1045 (9th

Cir. 2014). Accordingly, Rule 701 does not violate the Equal

Protection Clause.

Astonishingly, NAAMJP does not cite a single equal

protection case in its argument that Rule 701 violates the Equal

Protection Clause. See Appellant’s Br. 33–39. In fact, each of

the cases cited by NAAMJP refers to equal protection—if at all—

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only to note that the Court did not reach the equal protection

argument. See Supreme Court of Va. v. Friedman, 487 U.S. 59, 63

n.* (1988); Frazier v. Heebe, 482 U.S. 641, 645 (1987); Supreme

Court of N.H. v. Piper, 470 U.S. 274, 277 n.3 (1985). These

cases provide little to no guidance here, as the bar admission

rules they considered involved residency requirements—which Rule

701 does not—and applied a heightened level of scrutiny—which we

need not.

C. The Rules Enabling Act

The Rules Enabling Act authorizes the judiciary to make

rules. Specifically, 28 U.S.C. § 2071 permits federal courts to

“prescribe rules for the conduct of their business,” with the

stipulation that “[s]uch rules shall be consistent with Acts of

Congress and rules of practice and procedure prescribed under

section 2072 of this title.” The “rules of practice and

procedure prescribed under section 2072 of this title” are rules

adopted by the Supreme Court of the United States, including,

for example, the Federal Rules of Civil Procedure and the

Federal Rules of Evidence.

In enacting Rule 701, the District Court prescribed a rule

“for the conduct of [its] business,” denoting which attorneys

may practice before it. The Rule does not violate any Acts of

Congress or any federal “rules of practice and procedure”

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adopted by the Supreme Court pursuant to § 2072. Thus, Rule 701

does not violate the Rules Enabling Act.

NAAMJP argues that § 2071 “expressly incorporates the

standard set forth in [§] 2072,” Appellant’s Br. 41, which

mandates that “[s]uch rules shall not abridge, enlarge or modify

any substantive right,” 28 U.S.C. § 2072(b). The plain language

of the statute, however, belies NAAMJP’s argument. The phrase

“[s]uch rules” in § 2072(b) clearly refers to the “general rules

of practice and procedure and rules of evidence” that § 2072(a)

permits the Supreme Court to prescribe. Moreover, § 2071’s

reference to § 2072 clearly refers to the “rules of practice and

procedure” that come out of the § 2072 rule-making standard, not

to § 2072’s rule-making standard itself. In other words, the

Rules Enabling Act tells district courts that they cannot use

local rules to contradict the Supreme Court’s rules of

procedure. Consequently, this NAAMJP argument fails. 8

D. The Supremacy Clause

Finally, the Supremacy Clause commands:

This Constitution, and the Laws of the
United States which shall be made in

8 NAAMJP argues that Rule 701 violates Rule 83(a) of the
Federal Rules of Civil Procedure because Rule 83(a)
“incorporates the 28 U.S.C. § 2072 standard,” Appellant’s Br.
42, restricting rules that “abridge, enlarge or modify any
substantive right,” 28 U.S.C. § 2072. This argument fails for
the same reason that the argument under § 2072 fails.

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 Pursuance thereof . . . shall be the supreme
Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the
Contrary notwithstanding.

U.S. Const. art. VI, cl. 2. In other words, if federal law and

state law conflict, federal law wins. See, e.g., Sperry v.

Florida, 373 U.S. 379, 384–85 (1963) (resolving a conflict

between Florida law and federal law in favor of federal law).

NAAMJP makes the bold—if not borderline frivolous—move to

challenge Rule 701, a federal rule adopted pursuant to a federal

statute. Accordingly, the Supremacy Clause has no bearing.

NAAMJP focuses on the fact that Rule 701 incorporates Maryland

state licensing requirements, but ignores the fact that nothing

prohibits federal law from incorporating state standards. See

Augustine v. Dep’t of Veterans Affairs, 429 F.3d 1334, 1340

(Fed. Cir. 2005) (citing NLRB v. Natural Gas Util. Dist. Of

Hawkins Cnty., 402 U.S. 600, 603 (1971)). Rule 701 clearly

incorporates state licensing requirements for attorneys in

Maryland and beyond. Rule 701’s use of these state standards,

however, does not transform Rule 701 into a state law. Rule 701

remains a federal rule prescribed pursuant to a federal statute.

Thus, Rule 701 in no way violates the Supremacy Clause.

III. CONCLUSION

To summarize, Rule 701 does not violate the First

Amendment, the Equal Protection Clause, the Rules Enabling Act,

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or the Supremacy Clause. Consequently, we affirm the decision

of the district court in granting the motion to dismiss.

AFFIRMED

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